Reassessment proceeding for Asst Yr 2013-14 & 2014-15 Barred by Limitation: CBDT Instruction 1/5/2022 Erroneous!
Prashant Thakur
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A game of ping-pong!
It looks like a game of ping-pong between income tax authorities & lawyers! CBDT proposes reassessments by its own selfish interpretation of the law, Hon'ble Supreme Court giving a chance using its extraordinary power to reissue notice u/s 148 after fulfilling the procedure u/s 148A. CBDT, post S.C. judgment, proposes reassessment, again interpreting its way, and now two High Courts have disposed of the proposal of reassessment for Asst Yr 2013-14 & 2014-15 illegal.
Pursuant to Hon'ble Supreme Court judgments in the Ashish Agarwal case, CBDT had issued instruction no 11/05/2022, and thousands of reassessment proceedings for many assessment years are currently being carried out. As per some communication in social media, all those reassessment cases need to be complete by 31st May 2023 (Although legally speaking, that is also not the correct view as far as the limitation of passing assessment order is concerned ). But that is not the focus of this article.?
This article focuses on the two judgments that came in February 2023 about the validity of the reassessment proceedings for the asst Year 2013-14 & Asst Yr 2014-15, after the Judgment of S.C. in the Agarwal case and subsequent CBDT instruction 1/5/2022, where the department has information about assets or other things for more than 50 Lakhs.
Two High Courts Judgments in Favour of Assessee
We have the benefit of guidance from two High Courts on the issue of the validity of the reassessment proceeding u/s 148A post-Supreme Court judgment in the Asish Kr Agarawal case.?The two decisions are :
Gujarat High Court Judgment dt 9/02/2023
The following are important takeaways from the Gujarat High Court order referred to above :
CBDT Instruction : 01/2022 Erroneous
In para 53 of its order , Hon'ble Gujarat High Court did not mince its words in declaring that the CBDT circular is clearly misinterpreted the decision of the Supreme Court judgement in Ashish Agarwal case. the relevant part of the order of Gujarat High Court is given below :
53.1?This is an erroneous interpretation of the Apex Court's decision which did not say that the extension provided by TLA Act would get extended for issuance of reassessment notices to travel back in time to the original date when such notices were to be issued. While so interpreting, the CBDT overlooked the fact that in para 10(iv) in case of Union of India vs. Ashish Agarwal (supra) the Apex Court kept all the defences available to the petitioner including those available under section 149 of the Act open. Accordingly, the petitioner has raised the defence under the first proviso to section 149 of the Act before issuance of notice under section 148 of the Act.??
High Courts View on Delhi High Court Judgment in case of
On Delhi High Court judgment in the case of?Touchstone Holdings P Ltd vs. ITO ,?the High Court observed, dissenting with the Delhi High Court order as under :
(a) Referring to the decision of Delhi High Court in the case of Touchstone Holdings Private Limited vs. ITO reported in WPC 13102 of 2022 dated 09.09.2022, he submitted that the said judgment does not lay down the correct law for the following reasons: (i) The said judgment proceeds on the footing that the original notice issued between time period 01.04.2021 to 30.06.2021 was issued within the permissible extended time by virtue of operation of TOLA and Notifications issued thereunder. (ii) This fundamental premise of issuance of notices under section 148 of the Act between 01.04.2021 to 30.06.2021 being illegal, reliance placed on the said decision is of no consequence. Referring to the decision of Ashish Agarwal (supra), he submitted that even the Supreme Court has noted that notices were issued due to bonafide mistakes.
Allahabad High Court on CBDT Instruction 1/2022
Like Gujarat High Court, Hon'ble Allahabad High Court also found the CBDT instruction dated 11/05/2022 circumventing the Supreme Court decision . Here is the excerpt from the order :
90.?Now coming to the CBDT Instructions dated 11.5.2022 is concerned, we find that the third bullet to clause (6.1) which states that the Apex Court has allowed time extension provided by TOLA and the "extended reassessment notices" will travel back in time to their original date when such notices were to be issued and then Section 149 of the Act is to be applied at that point, is a surreptitious?attempt to circumvent the decision?of the Apex Court. The observations in paragraph "7' of the judgment in Ashish Agarwal (supra) of the Apex court has been noted in piecemeal in the said bullet point to clause (6.1) of the CBDT instructions dated 11.5.2022 to give it a distorted picture.
91. The directions issued in clause 6.2 to deal with the cases of the assessment years 2013-14 to 2017-18?are based on the misreading of the judgment of the Apex Court in Para 6.1 of the Instructions. Terming reassessment notices issued on or after 1.4.2021 and ending with 30.6.2021 as "extended reassessment notices", within the time extended by the Enabling Act (TOLA 2020) and various notifications issued thereunder, in Para 6.1 is an effort of the revenue to overreach the judgment of this Court in Ashok Kumar Agarwal (supra) as affirmed by the Apex court in Ashish Agarwal (supra).
Key Takeaways from Allahabad High Court Decision dt 22/02/2023
In plain and simple terms, the notices issued for the assessment year 2013-14 and assessment year 2014-15 are time-barred on 0/04/2021
Final Opinion?
No matter what the quantum of escapement of income is for the assessment year 2013-14 & Asst year 2014-15, the notices issued u/s 148, post S.C. judgment in the Ashish Agarwal case and subsequent CBDT instruction, are barred by limitation.?
Like always, the government will challenge these orders in Supreme Court, but chances of success are bleak, in my opinion .
ADVOCATES & TAX CONSULTANTS at K.VASANTKUMAR & A.V.RAGHURAM
1 年Sure. Chances are bleak for Revenue. But lakhs of Tax payers money would get locked up and further would be used on professional charges. How on earth the main plank of Apex Court inthe Ashish Agarwal case that the provisions of Section 148 are not in vogue once 148A has come into? effect from 1.4.2021. When such is the case how TOLA extending limitation be held to be valid.